remedy for the mischief, then, would certainly be worse than the mischief itself; and I think a community, like an individual, should endure a lesser evil, if, in attempting to cure it, a greater one would be entailed upon them. * [This case held the Michigan banking act to be unconstitutional.] See note, supra, p. 32. DEADY, J., IN WELLS, FARGO & CO. v. NORTHERN PACIFIC RY. COMPANY, 1884, Circuit Court of Oregon, 23 Fed. Rep. 469, on pp. 473-4, in a suit by the Wells Fargo Express Company, organized under a special act of the territory of Colorado, to constrain the railway company to furnish it with express facilities in Oregon, says: Another objection is made to the relief demanded in this bill on the ground of the inability of the plaintiff to exercise the powers claimed by it in Washington Territory, and that is that it is created by a special act of Colorado. This objection is founded upon section 1889, of the Revised Statutes, which is applicable to all territories, and reads as follows: "The legislative assemblies of the several territories shall not grant private charters or special privileges; but they may, by general incorporation acts, permit persons to associate themselves together as bodies corporate for mining, manufacturing and other industrial pursuits, or the construction or operation of railroads, wagon roads, irrigating ditches, and the colonization and improvement of lands in connection therewith, or for colleges, seminaries, churches, libraries, or any other benevolent, charitable or scientific association." Now, it is argued, first, that because a corporation can not be organized in Washington Territory by a special act of the legislature, but must be organized under a general law; therefore, a corporation existing before this restriction was made, under a special act of a sister state or territory, can not come into that territory and exercise the powers, although they are in no way excluded by the law of the land, or contrary to the public policy. The ground is that it is not brought into being in the peculiar or particular way in which the general law now requires corporations to be formed in Washington Territory; but I can not see that there is anything in this objection. There is nothing in this section (1889) to prevent any corporation exercising its powers in Washington Territory in particular cases. Everybody who is familiar at all with the history of the growth and organization of corporations in the United States knows that this rule, requiring corporations to be organized under a general law, is the growth of some years, and has grown out of the confusion, corruption, the partial and inequitable legislation that was the result of allowing parties to go before the legislature and ask for a special charter. The time of the legislature was unnecessarily consumed by it, the integrity of the members of the legislature was unduly exposed; or, through the ignorance or carelessness of the legislature, and the astuteness and diligence of designing and overreaching men, there were constantly coming to light obscure clauses in these acts of the legislature, giving powers and granting privileges which were unjust, inequitable, and which would never have been done with the knowledge of the legislature. Therefore, owing to the evils resulting to the territory of Washington, to the people and to the legislature, this act was passed, and has no reference whatever to the fact whether a corporation, otherwise formed, might exercise powers in that territory not prohibited or contrary to its public policy. It is a matter of no moment whatever to Washington Territory that corporations in Colorado are created by special acts. The people of the latter territory are not corrupted by it; the legislature is not corrupted by it; their time is not taken up with it. The only interest that they have in the matter is the interest that any portion of the people of the United States have in the welfare of all the other people in the United States. See, also, on this point, the remarks of Mr. Justice Field in Cowell v. Springs Co., 100 U. S. 59. Note. 1879, Cowell v. Springs Company, 100 U. S. 55. Sec. 58. Same. (b) Difference between method by general and by special laws. MOKELUMNE HILL CANAL AND MINING CO. v. WOODBURY.1 1859. IN THE SUPREME COURT OF CALIFORNIA. 73 Am. Dec. 658. 14 Cal. 424-428; COPE, J., delivered the opinion of the court, BALDWIN, J., and FIELD, C. J., concurring. It is alleged in the complaint that the plaintiff is a corporation, and this allegation being denied in the answer, the case was tried in the court below upon that issue alone. The plaintiff dates its corporate existence as far back as 1852, and claims to have been duly and regularly incorporated under the general act of 1850, providing for the formation of corporations for manufacturing, mining, mechanical and chemical purposes. Section 122 of that act provides that any three or more persons, who may desire to form a company for either of these purposes, "may make, sign and acknowledge before some officer competent to take the acknowledgment of deeds, and file in the office of the clerk of the county in which the business of the company shall be carried on, and a duplicate thereof in the office of the secretary of state, a certificate in writing," etc. Section 123 provides, that "when the certificate shall be filed as aforesaid," the persons executing the same and their successors. shall be a body politic and corporate. Sec1 Arguments omitted. tion 130 pravides, that "the copy of any certificate of incorporation filed in pursuance of this act, certified by the county clerk or his deputy, to be a true copy, and of the whole of such certificate, shall be received in all courts and places as presumptive legal evidence of the facts therein stated. On the trial of the case, it was shown that a certificate, in conformity with the requirements of the act had been filed in the office of the clerk of the proper county, and a certified copy thereof was produced and read in evidence, but it was not shown that a duplicate had been filed in the office of the secretary of state. It appeared in proof that the company had been doing business as a corporation since 1852, but the court held, that as it was not shown that a duplicate had been filed as required by the act, the evidence did not establish the fact of incorporation. The general rule is, that the existence of a corporation may be proved by producing its charter, and showing acts of user under it; but this rule has no application to a corporation formed under the provisions of a general statute, requiring certain acts to be performed before the corporation can be considered in esse, or its transactions possess any validity. The existence of a corporation thus formed must be proved by showing at least a substantial compliance with the requirements of the statute. But there is a broad and obvious distinction between such acts as are declared to be necessary steps in the process of incorporation, and such as are required of the individuals seeking to become incorporated, but which are not made prerequisites to the assumption of corporate powers. In respect to the former, any material omission will be fatal to the existence of the corporation, and may be taken advantage of, collaterally, in any form in which the fact of incorporation can properly be called in question. In respect to the latter, the corporation is responsible only to the government, and in a direct proceeding to forfeit its charter. The right of the plaintiff to be considered a corporation, and to exercise corporate powers, depends upon the fact of the performance of the particular acts named in the statute as essential to its corporate existence. Under the issues presented in the pleadings, there is no doubt that performance of these acts should have been shown, and if the filing of the duplicate of the certificate of incorporation is to be regarded as one of them, the court below properly held that the existence of the corporation had not been established. But we do not see upon what principle such a construction of the statute is admissible. It is certainly not justified by the natural and ordinary import of the language used, which must furnish the rule of construction, unless a contrary intention clearly appear. Section 122 of the act provides, as we have seen, for the filing of a certificate with the clerk, and a duplicate with the secretary of state; but section 123 declares that when the certificate shall be filed, the persons executing the same and their successors, shall be a body politic and corporate. The intention of the legislature clearly was, that, so far as individuals are concerned, the corporation should acquire a valid legal existence upon the filing of the certificate. The filing of the duplicate is exclusively a matter between the corporation and the state. The rights and privileges conferred by the statute vest in the corporation upon the filing of the certificate, and can be divested only by a direct proceeding for that purpose. If the duplicate has not been filed, the assumption of the corporate powers amounts simply to a usurpation of the sovereign rights of the state, the remedy for which rests with the state alone. Judgment reversed, and cause remanded for a new trial. Note. See below, cases upon Conditions Precedent to Valid Corporate Existence, pp. 585, 614, 630; When Does Corporate Existence Begin? pp. 565585; also, Schemes of Organization. Sec. 59. (2) Same. DUNN ET AL. V. THE UNIVERSITY OF OREGON.1 1881. IN THE SUPREME COURT OF OREGON. 9 Oregon Reports 357-362. This suit was brought by respondents in the circuit court for Lane county, to set aside a conveyance of real property situated in said county, from the Union University Association to the said board of directors of the University of Oregon, executed on or about December 31, 1873, upon the ground of fraud, and to subject such property to the payment of certain judgments, which had been recovered in said court by respondents against said association. The complaint alleges the due incorporation of the Union University Association as a private corporation under the laws of Oregon, and the creation of the board of directors of the University of Oregon by act of the legislature, approved October 19, 1872, subsequently changed to the "Regents of the University," by act of the legislature October 21, 1876. It also shows that in the year 1873, and prior to the conveyance sought to be impeached, the Union University Association became indebted to the respondents severally in large amounts which have never been paid. That at the time said indebtedness accrued, and prior thereto, said association was the owner in fee-simple of certain real property in Eugene City, in said county, worth $50,000, and gives a description of it by metes and bounds. That said real estate was all the property owned by said association, and that by conveying it to the board of directors of the University of Oregon, it made itself insolvent, and thereupon became and has ever since remained wholly unable to pay its debts. That said conveyance was executed in fraud of the rights of the respondents, and for the purpose of hindering and delaying them in collecting their said debts, and that there was no consideration therefor, and these facts were fully within 1 Arguments omitted. Parts of opinion omitted. the knowledge of said board of directors when they received said conveyance. Prior to instituting this suit the respondents severally duly recovered judgments against the Union University Association upon their said claims, in said circuit court, and caused them to be duly docketed in said county, and executions to be issued and placed in the hands of the sheriff for service, which were duly returned by him wholly unsatisfied. The board of regents demurred, and the court below overruled the demurrer, and upon their failing to answer, rendered a decree for respondents as prayed for in their complaint. From this decree the board of regents have brought this appeal. By the court, WATSON, J.: That the state university itself was incorporated under the provisions of the act of October 19, 1872, entitled "an act to create, organize and locate the university of the state of Oregon," is not claimed; but that the "board of directors" created by that act was an incorporated body can hardly be denied. Section 2 declares: "The general government and superintendence of the university shall vest in a board of directors; to be denominated the board of directors of the university of Oregon," to consist of nine members, all of whom shall be citizens and permanent residents of the state of Oregon." Section 4 provides: "The board of directors shall have the custody of the books, records, buildings and all other property of the university. All lands, money, bonds, securities and other property which shall be donated, transferred or conveyed to the said board of directors by gift, devise or otherwise, for the use and benefit of the university, shall be taken, received, held and managed, invested and reinvested, sold, transferred and in all respects managed, and the proceeds thereof used, bestowed and invested in the manner, for the purpose and under the terms and conditions respectively prescribed by the act or gift, devise or other act in the respective cases. They shall have power, and it shall be their duty, to enact by-laws for the government of the university; to elect a president of the university, and the requisite number of professors, instructors and employes, and to fix their salaries and the term of office of each, and to do all other acts necessary and proper to carry out the design of this act." Sections II and 12 provide, that on or before January 1, 1874, "The Union University Association of Eugene City, Ore., shall secure a site for said university at or in the vicinity of Eugene City, and erect thereon and furnish a building for the use of the state university, on a plan to be approved, and, after the erection of the same, to be accepted by the board of commissioners for the sale and management of the school and university lands, and for the investment of the funds arising therefrom; said building and furniture to be of not less value than $50,000; and to convey the said site and building, in fee-simple, free from all incumbrances, to said board of directors, on or before said January 1, 1874." By an amendatory act, passed October 16, 1874, the time was ex |